The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2015.
The Issue The issues presented for determination are the following: Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.
Findings Of Fact At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program. Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990. l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1990.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Lake County School Board Policy 2.71 as described in letters from the Lake County Superintendent of Schools dated January 2, 2007, and January 7, 2007, and if so, what penalty should be imposed.
Findings Of Fact The School Board of Lake County is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material to this proceeding, Paul Ogles was employed as an English/speech teacher at the Curtright Center of Eustis High School in the Lake County School District. Mr. Ogles, a Caucasian male, has been employed as a teacher for the District for nine years. At all times material to this proceeding, Ms. Bernetta McNealy, an African-American woman, was employed as a teacher at the Curtright Center of Eustis High School. Ms. McNealy's classroom is adjacent to Mr. Ogles' classroom. During the 2005-2006 school year, Ms. Tess Rogers was an assistant principal at Eustis High School and one of Mr. Ogles' supervisors. Mr. Michael Elchenko was Principal at Eustis High School during this time, and Ms. Rebecca Nelsen was the Director of Compensation and Employee Relations for Lake County School District. Mr. Ogles' first teaching position was as a teaching assistant with Project Outward Bound at Morris Brown College, a historically black college in Atlanta, where he prepared high school students for college. Mr. Ogles returned to teaching twenty years later after running his own textbook company. Mr. Ogles has received excellent evaluations during his employment by the Lake County School District. Once a teacher receives a rating or twelve (the highest rating possible) for two consecutive years, the educator may choose to participate in a PG-13 Appraisal of Professional Growth/Career Development instead of receiving the normal educator evaluation. Mr. Ogles qualified for this type of evaluation and successfully participated in the PG-13 appraisal process for several years. Mr. Ogles has sponsored or assisted with many school organizations such as the Beta Club; the Chess Club; the Key Club; the High Q Club; and the Speech and Debate Club. He used personal funds to support the students' activities, including paying $300.00 to rent a bus so students could attend a competition. Mr. Ogles was one of two Team Leaders on campus and in that capacity worked with the assistant principal to try to upgrade the quality of the school and to increase interaction between students and teachers. He also volunteered for bus duty before and after school. While performing bus duty, it was often Mr. Ogles' responsibility to enforce the school's dress code as students arrived on campus. Eustis High School has a policy of prohibiting students from wearing clothing with symbols or messages that may be considered disruptive to the learning environment. Students are not necessarily disciplined for wearing such clothing, but are requested to remove the offensive clothing, turn it inside out so as to hide the offensive message, put other clothing on over it or call home to have alternate clothing provided. The Confederate flag is one such symbol that is not allowed to be displayed on clothing worn to school. Dixie Outfitters is a line of clothing that sometimes bears the Confederate flag. Mr. Ogles was aware that the school policy forbade the wearing of the Confederate flag and he often was involved in enforcing the policy against students wearing the symbol. On or about May 19, 2006, Mr. Ogles was using his computer to search for project ideas for the following year while his students were taking a test. He was looking at a website called www.cagle.com, a political website from which he has gotten cartoons in the past. Several cartoons from this website are posted in his classroom, and there was no evidence presented to indicate that anyone had ever complained about their display. While viewing the website, he saw a cartoon that depicted a Confederate flag. However, instead of the traditional "stars and bars," the cartoon showed black arms crossed, with stars imprinted on them. The hands were extended beyond the flag, with the wrists shackled. The cartoon was originally published in approximately 2000, as a means of protesting the consideration by several southern states to display the Confederate flag at state buildings. When Mr. Ogles first saw the cartoon, he thought that it was "strong art" depicting the Confederate flag as a symbol of racism. In between classes, he showed the cartoon to Ms. McNealy. He asked her if she was familiar with students wearing Dixie Outfitters clothing. She indicated she was not. He stated that perhaps this cartoon could be placed on a new line of clothing for black students to wear in response to the "heritage" argument white students used to defend the wearing of the Confederate flag. The conversation was very short, as the bell was ringing for the next class to begin. Ms. McNealy did not respond to Mr. Ogles or give him any indication that she was offended or bothered in any way. There is also no evidence that she ever discussed her feelings about the cartoon with Mr. Ogles at any later time. Mr. Ogles testified, and his testimony is credited, that he believed that because the cartoon advocated a position against the display of the Confederate flag, that it would support what he believed to be Ms. McNealy's position on this issue. It is his view that African-Americans have as much ownership of the Confederate flag as anyone else, and should be able to use the image to express their views. While Ms. McNealy did not tell Mr. Ogles that she was offended by the cartoon, she did make her feelings known to Ms. Rogers, the assistant principal and Michael Rivers, a guidance counselor at the Curtwright Center, almost immediately. Ms. Rogers is Caucasian and Mr. Rivers is African-American. Both found the cartoon to be offensive. After speaking with Ms. Rogers and Mr. Rivers, Ms. McNealy left campus for the day. About an hour after he showed Ms. McNealy the cartoon, he was asked to come to the office and was informed by Ms. Rogers and Mr. Jones, another administrator, that Ms. McNealy was upset about the cartoon and had left campus. Mr. Ogles did not realize that Ms. McNealy would be offended by the cartoon and had he realized she would be offended, he would not have shown it to her. On May 22, 2006, Mr. Elchenko, the Principal of Eustis High School received a written complaint from Ms. McNealy about Mr. Ogles' showing her the cartoon.1/ Mr. Elchenko determined Mr. Ogles' conduct to be unprofessional and issued a Professional/Personal Action Report Relating to Work Experience (Appraisal II form) and Prescription/Assistance Form to Mr. Ogles. Both documents directed him to stop giving materials to co-workers that could be considered offensive. Mr. Ogles has complied with these directives. After Mr. Elchenko completed his investigation, Mr. Elchenko reported the allegations to the School Board's District office because he believed the allegations in Ms. McNealy's complaint rose to the level of racial harassment. Rebecca Nelsen conducted an investigation on behalf of the School District. Mr. Ogles was reassigned from his teaching position at Eustis High School to the County Copy Center by letter dated July 17, 2006, and remains in that placement today. Ms. Nelsen determined that Mr. Ogles' conduct created an intimidating, hostile or offensive work environment on the basis of race, which is prohibited by School Board policy. Ms. Nelsen recommended to the Superintendent that Mr. Ogles' employment be terminated. A separate investigation was conducted for the School Board by a private entity called the Robert Lewis Group. The findings and recommendations of that investigation are not part of this record. By letter from the Superintendent dated January 2, 2007, Mr. Ogles was suspended without pay for the period from January 8, 2007 through January 12, 2007, and was directed to receive cultural sensitivity training for violating School Policy 2.71. There is no evidence submitted to indicate that the Superintendent's decision was approved or ratified by the Lake County School Board. Mr. Ogles served his period of suspension and successfully completed cultural diversity training. Before this incident, Mr. Ogles had never been accused of making any appropriate racial remarks and was not considered to be a racist individual. He had expressed the view that racism should hold no place in education. His principal did not question his competence as an educator.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the charges against Respondent, and rescinding all discipline previously imposed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2007.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to removed her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. Nettie Thomas identified Vernon Clark as one of the students who held her arms while she was being held on top of the teacher's desk. Vernon Clark acknowledged that he was in room 101 when the sexual assault took place and that he had been in the room before the female victim was pulled into the room. Vernon Clark was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class. However, Vernon Clark denied ever touching the victim in anyway or at anytime during the incident. In resolving this apparent conflict between the testimony of the victim and the testimony of Vernon Clark, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report does not specifically name Vernon Clark by name, but does indicate that "All the boys was holding me so that I could not move and they tried to take my belt off and zip down my pants." In light of this written statement and having judged the demeanor of the various witnesses, it is found that Vernon Clark did hold the arm of the victim in order to restrain her on the desk during the sexual assault. Vernon Clark did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her. Vernon Clark had no record of misconduct at Brownsville Junior High School prior to this incident. He was not a disruptive student and his academic performance was satisfactory.
Recommendation Based upon the foregoing findings of fact and conclusions of law; it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Vernon Clark to the McArthur Senior High School North. DONE and ENTERED this 11th day of April, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985. COPIES FURNISHED: Mitchell A. Horwich, Esquire Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 1459 West Plaza, Suite 210 7900 N. W. 27th Avenue Miami, Florida 33147-4796 Frank R. Harder Esquire Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps School Board Clerk School Board of Dade County 1450 N. E. Second Avenue Suite 301 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami, Florida 33132
The Issue Whether Petitioner, Duval County School Board, had just cause to suspend Respondent without pay for seven days for the reasons specified in the agency action letter.
Findings Of Fact Jurisdiction Petitioner, Duval County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Duval County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Sawdy was employed as a teacher at Lake Shore in Duval County, Florida, from 2011 through June 2018. During the 2016-2017 school year, Mr. Sawdy taught civics to seventh grade students. During the time he was a teacher at Lake Shore, Mr. Sawdy received an effective or highly effective rating on his performance evaluations. Mr. Sawdy has never received discipline during his tenure as a teacher. Specifically, during the time that he had worked at Lake Shore, he was never disciplined for failure to adequately supervise students. After the 2017-2018 school year, Mr. Sawdy relocated to North Carolina and is serving as a teacher there. Background The incident that served as the basis for this proceeding occurred on May 2, 2017. Mr. Sawdy’s classroom was located in a portable unit with windows at Lake Shore. Generally, Mr. Sawdy would have a structured lesson for the class period. However, on this day the students in the class returned from a field trip in the middle of the third period at approximately 1:30 p.m. The students were instructed to go to their designated class and remain there until the fourth class period. The field trip was to the Diamond D Ranch, a farm in Jacksonville, Florida. There were approximately 20 students who went to Mr. Sawdy’s classroom after the field trip. As was the typical case when students returned from a field trip, the students were described as rowdy. As a result, Mr. Sawdy permitted the students to work on note cards and listen to music. The music was from Hamilton, the musical, which was used to teach the students about the historical figure, Alexander Hamilton. Although music was playing, the students could hear each other. The lights were off, but you could see in the room because the windows allowed sufficient ambient light. The School Board alleged that Mr. Sawdy allowed a group of students in his class to participate in an inappropriate game. One of the students from the group included R.G. The group was located at the back of the classroom. The testimony from various witnesses about what happened in the classroom on May 2, 2017, varied in several areas. Student Testimony Student C.A. C.A. testified that when the class returned to the classroom, Mr. Sawdy did not have a specific lesson. He played music and allowed students to move freely. According to the diagram of the room, C.A. was sitting near R.G., with one chair between them, in the group. C.A. testified that he witnessed R.G. lift her shirt, exposing her breasts. C.A. described the event as “flashing” that happened quickly. C.A. testified that Mr. Sawdy was sitting at his desk at the front of the room when R.G. lifted her shirt, which was farther away from R.G. than was C.A. C.A. credibly testified that Mr. Sawdy was strict regarding discipline for inappropriate behavior. If Mr. Sawdy had seen R.G.’s conduct, he would have called her parents or referred her to the principal. C.A. testified that he did not see anyone kissing or touching private parts. At some point during the class, C.A. slapped D.B. on the back of her thigh. C.A. testified that Mr. Sawdy took him outside the classroom to discipline him for hitting D.B., which redirected his behavior. Student D.B. D.B. testified that Mr. Sawdy’s class is usually laid back and there is even less structure after a field trip. After the field trip, Mr. Sawdy instructed students to work on note cards. While music was playing, they could hear each other. While the lights were off, they could see each other because of the lights from the windows. Turning off the lights was a common practice of other teachers at Lake Shore as well. D.B. was sitting at a desk on the opposite side of the group from R.G. D.B. recalled that Mr. Sawdy was at his desk working on his computer. There were students sitting between R.G. and Mr. Sawdy. D.B. testified that she saw K.2/ lick R.G.’s breast, which happened within two seconds. D.B. credibly testified that she did not see anyone else expose their breasts or kiss anyone. Student H.P. H.P. was sitting near the group. She testified that although music was playing, it was not so loud that she could not hear. She testified that she was aware that a game was taking place. However, she did not see anyone kiss anyone, or engage in any inappropriate activity. H.P. testified that Mr. Sawdy was doing paperwork, and she did not see him walk around during class. However, H.P. credibly testified that Respondent would discipline students if he aware that they misbehaved. Student K.M. K.M. was sitting at the same table as H.P., near the group. In fact, she was sitting closer to R.G. than H.P. K.M. testified that Mr. Sawdy was sitting at his desk working on his laptop. However, she saw him walk around the classroom “one or two times.” K.M. testified that Mr. Sawdy instructed students that it would be a free day because they had returned from the field trip. During the class, Mr. Sawdy turned on music from Hamilton. K.M. stated that she witnessed C.A. slap D.B.’s thigh and saw Mr. Sawdy remove C.A. from the classroom to discipline him for his actions. Despite her close proximity to the group, K.M. did not see anyone kiss anyone, lift their shirt, or lick anyone. K.M. traveled to Europe for a field trip chaperoned by Mr. Sawdy in June 2018. She testified that he did well as a chaperone. Student C.W. C.W. testified that Mr. Sawdy permitted students to listen to music and hang out after the field trip. C.W. was sitting near the windows, near the corner of the class, but closer to the group than Mr. Sawdy. She characterized the group as “troublemakers.” She stated that Mr. Sawdy warned the group to settle down several times. Despite her criticism of the group, C.W. did not see anyone kiss or lick anyone, or otherwise engage in inappropriate activity. Student J.B. J.B. testified that after the field trip, Mr. Sawdy turned on a video of Bill Nye, “the science guy,” on the television. Since students were not watching the video, Mr. Sawdy turned on music. At some point, Mr. Sawdy told the group of students to quiet down because they were being loud. J.B. testified that Mr. Sawdy would discipline students who misbehaved by talking to them or issuing a referral to the principal’s office. J.B. stated that he was not aware of a game of truth or dare being played at the time. He also credibly testified that he did not see anyone kiss anyone, lift up his or her shirt, or see anyone do anything inappropriate. Student F.G. When F.G. and the other students returned to class, Mr. Sawdy instructed them to watch the Bill Nye video and work on note cards. Music from the musical Hamilton was playing toward the end of class, but it was not too loud. F.G. testified that Mr. Sawdy was sitting at his desk during class, but he walked around a few times. Although F.G. was sitting close to the group, she did not know that any inappropriate activity occurred until a few weeks later. F.G. credibly testified that she did not see anyone dancing, kissing, or engaging in inappropriate touching. F.G. also confirmed the testimony of C.A. and D.B. that Mr. Sawdy would discipline students who misbehaved, beginning with a warning outside the classroom, followed by a phone call to their parents and then, a referral to the principal. None of the students who testified stated that they had concerns for their safety or the safety of other students in the class. Although subpoenaed, the complaining student, K.A.M. did not appear at the final hearing.3/ Mr. Sawdy’s Testimony Mr. Sawdy also testified at the final hearing. He stated that he chaperoned a group of students on a field trip to Diamond D Ranch. When the students returned from the trip, they were instructed to go to his classroom. No other teachers or teaching professionals were in the classroom at that time. Mr. Sawdy testified that students are usually more relaxed after field trips and would benefit from a less restrictive teaching class period. As a result, Mr. Sawdy played music from Hamilton and instructed the students to work on note cards. The lights were off, but you could see because of ambient light. Mr. Sawdy credibly testified that he had no knowledge of any inappropriate conduct in his classroom on May 2, 2017, until Mr. Gottberg told him about the complaint regarding inappropriate activity in his classroom. If he had seen anything inappropriate, he would have addressed the actors accordingly. He described the instance where he counseled C.A. Mr. Sawdy’s testimony was consistent with that of C.A. and D.B., when he testified that he heard a slap, turned in the direction that he heard it and saw C.A. looking strange. He took C.A. outside the classroom and counseled him for hitting D.B. Subsequent to May 2, 2017, Mr. Sawdy planned and chaperoned a field trip to Europe with 10 middle school students, which took place in June 2018. The principal of each student’s school approved the trip to Europe without objection. Furthermore, there were no parents that objected to Mr. Sawdy chaperoning the students on the trip. Specifically, students M.W. (who did not testify at hearing) and K.M. were in the class on the date in question and still attended the trip to Europe without objection from their parents. There is no reason to believe or evidence to support that Mr. Sawdy would not have disciplined the students engaging in the activity alleged if he had knowledge of their conduct. Moreover, based on his experience with the class, there was no indication to Mr. Sawdy that the students would have the propensity to engage in the alleged conduct. The evidence demonstrates that the incident was, at most, a matter of two students surreptitiously engaging in unexpected inappropriate activity. There was no evidence offered to demonstrate that the alleged student conduct harmed the health or safety of the students in the class. Even if it is determined that the allegations on their face would demonstrate actual harm, rule 6A-10.081(2)(a)1. requires a showing that Respondent failed to make reasonable efforts to protect students from such harm. Gerald Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2102; EPC Dec. 19, 2012). Investigation Mr. Gottberg was the principal at Lake Shore during the 2016-2017 school year. He testified that there was an expectation that teachers would maintain a safe environment for students through classroom management and disciplinary action when necessary. There was also an expectation, but not a requirement, that classroom instruction would take place from beginning of class until the end of class (bell-to-bell instruction). On May 3, 2017, Mr. Gottberg’s assistant informed him that there was a parent and student that had a complaint about inappropriate student activity in Mr. Sawdy’s classroom that had occurred on May 2, 2017. Mr. Gottberg briefly interviewed the student and ultimately, referred the complaint to the Office of Professional Standards. The student resource officer, Mary Alice Knouse, interviewed three of the 22 students who were in the class on May 2, 2017. Based on her interview of the students, she determined that other than K.A.M. and K.M., no students witnessed any inappropriate conduct. The investigator assigned to investigate the complaint, James Gregory, also interviewed students. He interviewed students involved in the alleged conduct events and randomly selected other students. He did not interview all the students in the classroom on May 2, 2017. Mr. Gottberg was instructed to prepare a report regarding the complaint, and he complied. At the direction of the Office or Professional Standards, but before the student interviews were completed, he recommended that Mr. Sawdy receive Step III or Step IV progressive disciplinary action. Mr. Gottberg described Mr. Sawdy as one of the best teachers at Lake Shore. While Mr. Gottberg was principal, he even approved the 10-day field trip to Europe, which was scheduled to take place after the incident on May 2, 2017. Allegations Not Pled in Notice The School Board made much of the lights being turned off in the room and the music playing. These allegations were not pled in the charges and, thus, may not be relied upon as a basis for the School Board’s action. Even if the School Board had pled allegations regarding the lights and music, the School Board failed to prove that these factors proved that Mr. Sawdy inadequately supervised the students in his classroom. At least five witnesses testified that although the lights were off, there was sufficient light from the windows to see in the classroom. Mr. Gottberg sent an email to the Lake Shore teachers the day following the incident directing them to keep the lights on in the classrooms. However, no witness testified that there was a rule or policy regarding keeping the lights on during classroom instruction prior to the incident. In addition, teachers and students testified that it was a common practice for the lights to be off in the classrooms because sufficient light was available by window. Several witnesses also testified that the music was not so loud that you could not hear. Mr. Sawdy’s Reputation Respondent has a good reputation with other educators and is known to be an effective teacher. Several of those teachers testified at hearing about their experience working with Mr. Sawdy. Zandra Bryant worked on the same team with Mr. Sawdy at Lake Shore for approximately four years. She testified that she had worked at Lake Shore for eight years. She described Mr. Sawdy as “wonderful teacher” who was very organized and attentive. She was also a chaperone for the field trip to Diamond D Ranch and characterized the students as being rowdy when they returned from the field trip. She confirmed Mr. Sawdy’s testimony that it would not be a good time to begin a structured lesson. Mallory Layton also worked with Mr. Sawdy. She described him as role model, attentive to students, including administering discipline when necessary. Similar to Ms. Bryant, she also testified that after a field trip, it is good practice to engage the students in a relaxed activity. Melissa Cash and Kasey Winter testified that Mr. Sawdy was a good teacher who had a respectful relationship with students. Ultimate Findings of Fact There is no question that the allegations were of a sensitive nature. The testimony varied in material aspects, and was not of such weight (preponderance of evidence) that it produced a firm belief that Mr. Sawdy failed to reasonably protect the safety of the students in his classroom. The allegations that students engaged in exposure and licking of private body parts was supported by a preponderance of evidence. However, even though the evidence supports a finding, by a slim margin, that students engaged in inappropriate conduct, it must also be determined whether Respondent failed to make reasonable efforts to protect students from harm. The testimony varied regarding where Mr. Sawdy was located when the student conduct occurred. The testimony was clear and consistent that Mr. Sawdy was in the classroom. D.B., J.B., and H.P. testified that Mr. Sawdy was sitting at his desk doing work. F.G. testified that Mr. Sawdy was at his desk during the class, but walked around a few times. K.M. testified that Mr. Sawdy walked around the room one to two times. The totality of the evidence supports a finding that Mr. Sawdy was at his desk at the front of the room during the class period, but he left his desk and walked around a few times. At the final hearing, six witnesses credibly testified that they never saw anyone kiss, lick, or otherwise engage in inappropriate conduct in Mr. Sawdy’s classroom on May 2, 2017. The evidence also supports that these students were sitting closer to the group and arguably, were in a better position to see the group’s activity. There is no dispute that Mr. Sawdy was not aware that a group of students had engaged in inappropriate conduct in his classroom on May 2, 2017. Based on the evidence presented at hearing, Petitioner did not prove by a preponderance of evidence that Mr. Sawdy inadequately supervised students in his classroom on May 2, 2017. Mr. Sawdy walked around the classroom and interacted with students. He had control of students to the extent that he even disciplined a student for playfully hitting another student. The evidence reflects that the alleged student conduct was an isolated event that happened, at most, within one to two seconds. The conduct was quite unusual and could not be reasonably anticipated. Petitioner failed to prove by a preponderance of evidence that Mr. Sawdy failed to make reasonable efforts to protect the students from harm. There was no evidence offered to support a finding by a preponderance of evidence that the student conduct was harmful to any student’s learning, or that the events adversely affected any student’s mental or physical health, or safety. Petitioner did not prove by a preponderance of evidence that there is just cause to suspend Mr. Sawdy without pay for seven days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board: dismiss the charges against Respondent; dismiss the notice of recommendation of issuing a reprimand and suspension without pay for seven days; and to the extent there is a statute, rule, employment contract, or the Collective Bargaining Agreement authorize back pay as a remedy for Respondent’s wrongful suspension without pay; Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 9th day of January, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2019.
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to remove her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. Nettie Thomas identified Anthony Dowdell as the student who turned the lights on and off. She also identified Dowdell as having touched her on the buttocks. Dowdell acknowledged that he was in room 101 when the sexual assault took place and that he had been in the room before the female victim was pulled into the room. Dowdell was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class. However, Dowdell denied ever touching the victim in anyway or at anytime during the incident. He did acknowledge turning the lights on one time, but denied other involvement with the lights. In resolving this apparent conflict between the testimony of the victim and the testimony of Dowdell, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report specifically names Dowdell by name as having turned the lights on and off. It also indicates that "All the boys was holding me so that I could not move and they tried to take my belt off and zip down my pants." In light of this written statement and having judged the demeanor of the various witnesses, it is found that Dowdell did turn the lights on and off during the assault and did touch the victim during the sexual assault. Dowdell did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her. Dowdell had a previous record of misconduct at Brownsville Junior High School prior to this incident. He was involved in two incidents of excessive talking and one fight.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Anthony Dowdell to the McArthur Senior High School North. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985. COPIES FURNISHED: MITCHELL A. HORWICH, ESQUIRE EDUCATION ADVOCACY PROJECT LEGAL SERVICES OF GREATER MIAMI, INC. NORTHSIDE SHOPPING CENTER 1459 WEST PLAZA, SUITE 210 7900 N. W. 27TH AVENUE MIAMI, FLORIDA 33147-4796 FRANK R. HARDER, ESQUIRE ASSISTANT SCHOOL BOARD ATTORNEY TWIN OAKS BUILDING, SUITE 100 2780 GALLOWAY ROAD MIAMI FLORIDA 33165 MS. MAEVA HIPPS SCHOOL BOARD CLERK SCHOOL BOARD OF DADE COUNTY 1450 N. E. SECOND AVENUE SUITE 301 MIAMI, FLORIDA 33132 DR. LEONARD BRITTON SUPERINTENDENT OF SCHOOLS DADE COUNTY PUBLIC SCHOOLS 1410 N. E. SECOND AVENUE MIAMI, FLORIDA 33132
